The Marine and Coastal Areas (Takutai Moana) Act’s stated protection of land with customary status, writes Māmari Stephens, is exactly the kind of amendment to New Zealand domestic law that signing the Declaration on the Rights of Indigenous Peoples may eventually lead to.
‘Free and equal to all other peoples’: some implications of New Zealand’s support for the Declaration on the Rights of Indigenous Peoples
by Māmari Stephens
Abstract
The impact of New Zealand supporting the Declaration on the Rights of Indigenous Peoples is far from the clear-cut ‘non-binding’ preface given by the Key government. International law can evolve. Domestically such a special declaration will ultimately be influential not just politically, but possibly in a legal sense in reframing indigenous rights.
The Declaration on the Rights of Indigenous People (‘Declaration’) contains a set of human rights standards as they pertain specifically to indigenous peoples; those peoples who have an historical continuity with pre-colonial societies, who are considered distinct from other parts of the larger societies in which such peoples live. The significance of our signing, in April 2010 of the Declaration might have easily been missed entirely by the casual observer. Shortly afterwards, responding to questions in the House, Prime Minister John Key assuaged perceived anxiety that New Zealand’s support for the Declaration would usher in a new era of recognising Māori claims to self determination. ‘We affirmed’, he said, ‘a declaration that is non-binding and aspirational.’1 Indeed, not to sign it would be churlish in view of the fact that it ‘would have no impact on New Zealand’s law or New Zealand’s constitutional framework’, he continued.
A government does not lightly sign any Declaration, especially one that New Zealand had opposed signing for several years under the previous Labour-led government.2 The long-term significance of our signing of the Declaration depends on two factors. First, will New Zealand governments make a political commitment to ratifying the Declaration by recognising it in whole or part within our domestic legal system? And, secondly, will parts or all of the Declaration represent binding obligations at customary international law?
John Key is right to a point. With one important exception (the Universal Declaration of Human Rights), declarations of the United Nations General Assembly do not bind New Zealand at international law. New Zealand must amend its own law to reflect international treaties to which it is a party, but nothing yet appears to compel New Zealand to amend our domestic law to reflect the provisions of this Declaration. With a strong ethical force because it reveals important standards of behaviour that states have agreed they ought to abide by, the Declaration affirms Māori collective identity and possession of rights based on the Treaty. The political will within the New Zealand government to ensure that the Declaration is incorporated into our legal system is, however, lacking.
For example, Cabinet is required to determine the extent to which any new legislation complies with our ‘international obligations’, although there is no handy list identifying what those obligations are.3 John Key’s statements above show the current government does not view the Declaration as part of New Zealand’s ‘international obligations’.4 This Cabinet mechanism has been described as ‘defective’ because it is only applied at the penultimate stages of policy development, once legislation has already been proposed. Even if it were included, therefore, the Declaration’s impact would be minimal.5
So, there will be no short-term impact upon Crown policy making, legislation, or upon other important areas such as settlement negotiations between iwi and the Crown due to New Zealand’s affirmation of the Declaration.
But…
If the text of the Declaration expresses, either in part, or as a whole, obligations of customary international law, those obligations are binding on New Zealand regardless of domestic incorporation.6 Put simply, customary international law comprises of certain laws that are accepted by states as being binding on them as a matter of custom. The rules of warfare, as now codified in the 1949 Geneva Convention, for example, derived originally from custom.
A couple of questions must be asked to determine if any law has the status of customary international law: (a) are there widespread state practices whereby a majority of states act in a way that supports the existence of such a law?; and (b) do states share a widely held belief that they are legally obliged to act in accordance with such a law? A state denying such a belief, or the existence of such a law, does not necessarily invalidate the law’s existence if enough states do accept it.
For instance, scholarly opinion appears to find that shared state practices and beliefs now indicate that international customary law recognises a specific right held by indigenous peoples to state-affirmed protection of their customarily held lands.7 States are therefore bound to amend their domestic laws to reflect this precept. A recent example may support domestic affirmation of such a right as protected by customary international law. Clause 4 of the Preamble to the Marine and Coastal Areas (Takutai Moana) Act 2010 trumpets the Act’s protection of customary rights to land (notwithstanding the controversial high threshold set to trigger such protection):
‘This Act takes account of the intrinsic, inherited rights of iwi, hapū, and whānau, derived in accordance with tikanga and based on their connection with the foreshore and seabed and on the principle of manaakitanga. It translates those inherited rights into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations’
By enacting this legislation it can be argued New Zealand has therefore amended its previously conflicting domestic law in line with the customary international law precept. Regardless of any opinion as to adequacy of the measure, surely the language of this provision shows that the government believes that such ‘intrinsic, inherited rights…derived in accordance with tikanga’ require protection, and this enactment is evidence of a practice designed to ensure the state acts in accordance with such a belief.
As customary international law evolves, it appears that international instruments such as the Declaration reflect, to a degree, customary international law, at least providing some evidence of widely held state belief in the existence of evolving principles of customary international law. While simply signing up to a set of principles is not necessarily evidence of such a belief, nevertheless such documents are becoming increasingly important in discerning what such shared beliefs are.8 While evidence of belief married with practice is still necessary to define such laws, many scholars already consider the Declaration is a broad statement of customary international law, for example, that indigenous land rights exist. In short, as time passes and more specific provisions from the Declaration are identified as precepts of customary international law, New Zealand will become bound by them. Identifying which rights within the Declaration are likely to become recognised as subjects of customary international law would be a useful test of the implications that our affirmation of the Declaration represents for all New Zealanders.
Footnotes
- New Zealand Parliamentary Debates Volume: 662; Page:10238. back ↩
- For example, New Zealand was one of 4 countries to oppose the adoption of the Declaration in the United Nations General Assembly. See General Assembly “Resolution 61/295: Declaration on the Rights of Indigenous Peoples” UNDoc A/61/67, Annex (13 September 2007). For a useful collection of essays on the negotiation and eventual adoption of the Declaration see C Charters and R Stavenhagen (Eds) Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (IWGIA, Copenhagen, Denmark, 2009). back ↩
- This requirement is a constitutional convention set out in the 2008 Cabinet Manual at 7.60: ‘Ministers must confirm that bills comply with certain legal principles or obligations when submitting bids for bills to be included in the legislation programme. In particular, Ministers must draw attention to any aspects of a bill that have implications for, or may be affected by […] international obligations[.]‘. back ↩
- The Universal Declaration of Human Rights is the only non-treaty document that forms part of the ‘international bill of rights’ which includes the Universal Declaration, the International Covenant on Civil and Political Rights (and two protocols to that covenant), the International Covenant on Economic, Social and Cultural Rights. back ↩
- See Geiringer, C and Palmer, M ‘Human rights and Social Policy in New Zealand‘ Social Policy Journal of New Zealand 30 (2007) 12-41, 33. back ↩
- Despite its status as a declaration, the Universal Declaration of Human Rights has been cited so often by governments and other entities that several commentators now believe some or all of its rights comprise customary international law See S. James Anaya and Siegfried Weissner. ‘The UN Declaration on the Rights of Indigenous Peoples: Towards re-empowerment’ at http://www.law.arizona.edu/news/Press/2007/Anaya100307.pdf (last accessed 20 March 2011), also Buergenthal, T., D. Shelton and D.P. Stewart (2002) International Human Rights in a Nutshell, 3rd ed., West Group, St. Paul, Minnesota. back ↩
- For a review of the relevant scholarship see S Stevenson ‘International land Rights and the Declaration on the Rights of Indigenous Peoples: Implications for Māori Land Claims in New Zealand.’ Fordham International Law Journal Vol 32 Issue 1 (2008) 297-343, 321, 323. back ↩
- S Stevenson ‘International land Rights and the Declaration on the Rights of Indigenous Peoples: Implications for Māori Land Claims in New Zealand.’ Fordham International Law Journal Vol 32 Issue 1 (2008) 297-343, 323-326. back ↩
About the author
Māmari Stephens (Te Rarawa) is at the Faculty of Law of Victoria University. She leads the Legal Māori Project, due to release a dictionary of legal Māori terms in 2012, and is also researching the Treaty of Waitangi and human rights.
